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that other provisions of this ordinance were superseded by the adoption of the Federal Constitution, and that its provisions, so far as they have been preserved, owe their validity and authority to that Constitution and to the Constitutions and laws of the respective States.1 The ordinance clearly does not deprive the State of power to obstruct bayous and sloughs, not useful for inter-state commerce ;2 to improve the navigation;3 or to grant ferry licenses.4 If the ordinance is an existing law, it would deprive the new States of such power as the original States possess to terminate navigation, and would so limit the powers of Congress that the assent of the States interested would be necessary to validate its action. "If," says Miller, J.,5 " the ordinance were obligatory in every particular, and not altered by common consent nor superseded by the Constitution of the United States, the States embraced within the north-western territory could not have been admitted into the Union on an equality with the other States, which is a fundamental principle of the Constitution, the basis of this Union." »
§ 134. A bridge or dam, erected in navigable waters and not sanctioned by any statute, is indictable as a public nuisance,6 even though the structure is shown to be of public
1 See Strader v. Graham, 10 How. 82; Pollard v. Hagan, 3 How. 212; Parmoli D. First Municipality, Id. 589; 7 Op. At. Gen. 571; Menard v. Aspasia, 5 Peters, 505; Dred Scott v. Sandford, 19 How. 393, 400; Woodman v. Kilbourn Manuf. Co., 1 Abb. (U. S.) 168, 162.
* Ingraham v. Chicago Railroad Co., 34 Iowa, 249.
3 Wisconsin River Improvement Co. v. Manson, 43 Wis. 255; Attorney General v. Eau Claire, 37 Wis. 400; Commissioners v. ridge, 5 Ind. 13; Williams v. Beardsley, 2 Ind. 591; La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155; Lorraan v. Benson, 8 Mich. 18, 2(5; Commissioners v. Withers, 29 Miss. 41.
* Fanning r. Gregoire, !) How. 634;
Conway v. Taylor, 1 Black, 603, 034; Chapin v. Crusen, 31 Wis. 209; State v. New Orleans Navigation Co., 11 Martin, 309, 323; Chiapella v. Brown, 14 La. Ann. 189; Marshall v. Grimes, 41 Miss. 27; Wiggins Ferry Co. v. East St. Louis, Chicago Legal News (1882), p. 228.
5 Woodman v. Kilbourn Manuf. Co., 1 Abb. (U. S.) 158, 162.
• Reg. v. Betts, 10 Q. B. 1022, 1037; State v. Freeport, 43 Maine, 198, 201; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61; People v. Vanderbilt, 26 N. Y. 287; 38 Barb. 282; Blanchard v. Western Union Telegraph Co., 60 N. Y. 510; Woodman t\ Kilbourn Manuf. Co., 1 Abb. (C. S.) 158, 166; State v. Dibble, 4 Jones (N. C.) 107; State v. Parrott, convenience and utility.i A State cannot declare that a bridge, constructed without a draw, is not an obstruction to inter-state communication, and the question whether it is a material obstruction can only be determined in the courts of the United States.2 When Congress has exercised its power to regulate navigation, its authority is paramount, and excludes or supersedes State legislation upon the same subject.3 An obstruction to navigation authorized by a State may become a nuisance, and liable to be removed under the subsequent action of Congress.4 When authority from the State is adequate to legalize such an obstruction, it is not necessary that compensation be provided,6 but the requirements of the statute conferring such authority must be fully observed, in order that it may afford the protection. A statute authorizing a partial obstruction of the navigation will not protect an impediment not contemplated by the statute, but any excess or irregularity in the exercise of the power, by which the navigation is impaired, becomes a nuisance pro tanto? Where a railway company was empowered
71 N. C. 311; Barnes v. Racine, 4 Wis.
* Tbid.; Columbus Ins. Co. v.
3 Ante, § 129; Willson v. Blackbird Creck Marsh Co., 2 Peters, 245; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; 18 How. 421; Pound v. Turck, 95 U. S. 459; Silliman v. Hudson Biver Bridge Co., 4 Blatch. 74, 395; 1 Black, 582; 2 Wall. 403; United States v. Duluth, 1 Dillon, 469; Works v. Junction Bailroad Co., 5 McLean, 425; United States v. Milwaukee Railroad Co., 5 Biss. 410; United States Railroad Bridge, 0
McLean, 518; South Carolina c. Georgia, 93 U. S. 4; Wisconsin v. Duluth, 96 U. S. 379, 387.
* Ibid.; Gibbons v. Ogden, 9 Wheat. 196; The Passenger Cases, 7 How. 283, 394; People v. Brooks, 4 Denio, 469; Sturgis v. Spofford, 45 N. Y. 446; Henderson v. Spofford, 59 N. Y. 131; Ex parte McNeil, 13 Wall. 236; Inman Steamship Co. v. Tinker, 94 U. S. 238, 244; Sherlock v. Alling, 93 U. S. 99.
5 Sugar Refining Co. v. Jersey City, 11 C. E. Green, 247; Glover v. Powell, 2 Stock. 211. The legislature may indirectly sanction a bridge over navigable waters; and where it authorizes a town to buy a bridge, this amounts to a declaration that the bridge is legal. Saugatuck Bridge Co. v. Westport, 39 Conn. 337.
6 Benwick v. Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Blanchard v. Western Union Telegraph Co., 60 N. Y. 510; State c. Freeport, 43 Maine, 198; Knox. v. Chaloner, 12 Maine, by act of Parliament to construct a swing bridge across a navigable stream, and the act provided that it should not be lawful to keep the bridge closed so as to obstruct the navigation for a longer time than was sufficient to enable those ready to use the bridge to cross it, and for opening it to admit vessels, it was held that the company was liable in damages to the owner of a vessel detained by reason of a defective construction of the bridge, which prevented it being opened, and that the company was not relieved of the duty to preserve the navigation by the fact that it had employed "a contractor to build the bridge in conformity with the provisions of the act.1 Where a way was authorized to be located across a tidal creek, by a statute of the State of Maine, which provided that it should be a bridge with a suitable draw, and subject to the approval of the harbor commissioners of Portland, a location which made no mention of a bridge or draw and was not approved by the harbor commissioners, was held to be unauthorized and void.2
§ 135. Statutes providing for the erection of drawbridges, or of dams with shutes or locks, over navigable waters, are construed strictly, like all public grants, and in favor of the pre-existing right of navigation.8 If the act provides for a
150; State v. Dibble, 4 Jones (N. C.) 107, 116; State v. Parrott, 71 X. C. 311; Healy v. Joliet Railroad Co., 2 Brad. (111.) 435; llickok v. Hine, 23 Ohio St. 523; Hogg v. Zancsville Canal Co., 5 Ohio, 410; State v. Bell, 5 Porter, 305; Newark Plank Road Co. v. Elmer, 1 Stock. 700. See White v. King, 5 Leigh, 720; Ottawa v. People, 48 111. 233; Korah v. Ottawa, 32 111. 121; Harlem v. Emmert, 41 111. 319; Van Wagenen v. Newark Plank Road Co., 1 Stock. 704; 4 Hal. Ch. 686; Allen v. Monmouth Co., 2 Beas. 08; Attorney General v. New York Railroad Co., 9 C. E. Green, 59. If the locution of a bridge over a navigable stream be changed without authority, it becomes a public nuisance. Allen r. Monmouth, 2 Beas. 08, 73.
1 Hole v. Sittingbourne Railway Co.; 6 H. & N. 488; Wiggins v. Boddington, 3 C. & P. 644; Attorney General v. Mid Kent Railway Co., L. R. 3 Ch. 100; Attorney General v. Furness Railway Co., 38 L. T. N. 8. 555. See Terre Haute Drawbridge Co. v. Halliday, 4 Ind. 36; Patterson i'. Proprietors, 40 Maine, 404; Cuff v. Newark Railroad Co., 6 Vroom, 17, 574; Jones r. Chantry, 1 Hun, 613; 4 Sup. Ct. 63; Davis v. Jenkins, 5 Jones (N. C.) 290.
* Cape Elizabeth r. County Commissioners, 61 Maine, 456.
3 Commonwealth v. Breed, 4 Pick. 460, 404; State v. Freeport, 43 Maine, 198; Attorney General v. Hudson River Railroad Co., 9 N. J. Eq. 526; Commonwealth v. Church, 1 Penn. St. 105; Hickok r. Hine, 23 Ohio St. 623, draw but does not designate its size, it will not be held that the legislature intended the draw to be insufficient for the convenience of the navigation.1 One who is authorized to erect a bridge over navigable water, with a draw not less than fifteen feet wide, is not required to maie the draw wider than fifteen feet, although vessels of a greater breadth have been accustomed to sail in such water.2 But under an act of incorporation authorizing the building of a bridge across a navigable fiver, uwith two suitable draws which shall be at least thirty feet wide," the company is bound not only to make the draws sufficiently wide to accommodate navigation at the time of their construction, but, if rendered necessary by an increase in the size of vessels, or a difference in their mode of construction, or from any other cause, to so enlarge the draws from time to time as to permit the passage of any vessels having occasion to pass the bridge.8 So a provision in an act authorizing a dam across a navigable
631; State v. Godfrey, 12 Maine, 361; Mason v. Boom Co., 3 Wall. Jr. 252; Newark Plank Boad Co. v. Elmer, 9 N. J. Eq. 754; Dugan v. Bridge Co., 27 Penn. St. 303; Selman v. Wolfe, 27 Texas, 68; Minturn r. Lisle, 4 Cal. 181; Barnes v. Bacine, 4 Wis 454; United States v. New Bedford Bridge, 1 Wood. & M. 401; Healy v. Joliet Bailroad Co., 2 Brad. (111.) 435; Nelson v. St. Croix Boom Co., 52 Wis 647. Power given to a railroad company to construct the road "along " a river will not be extended by implication to authorize its construction in or upon the river, or below hig)»-water mark of tide water. Stevens r. Erie Bailway Co., 21 N. J. Eq. 259; Stevens v. Paterson R. Co., 34 N. J. L. 532. See Abraham v. Great Northern Railway Co., 10 Q. B. 586; Van Wagenen v. Newark Plank Road Co., 4 Hal. Ch. 586; 1 Stock. 764; Attorney General i>. Stevens, Sax. 670. So authority to construct a boom along the banks or across a branch of a river does not give the right to maintain booms across the
entire river. Stevens Point Boom Co. v. Reilly, 46 Wis. 237; 44 Wis. 296; Plummer v. Penobscot Lumber Association, 67 Maine, 363.
1 Baltimore v. Stoll, 5 Md. 435.
* Commonwealth v. Breed, 4 Pick. 460. A corporation empowered by the legislature to maintain a mill-dam "on their own land " across the head of a harbor, with flood-gates thereto at least fifteen feet wide, so as to admit the passage of gondolas and boats at high water, may erect the dam below high-water mark at the head of the harbor, and across a part of the channel where the tide ebbs and flows; and the words "on their own land" merely exclude the inference that the lands of others may be taken. Parker v. Cutler Mill-dam Co., 20 Maine, 363.
3 Commonwealth v. New Bedford Bridge. 2 Gray, 830, 352; Dugan i>. Bridge Co., 27 Penn. St. 303. See New Haven Toll Bridge Co. v. Bunnell, 4 Conn. 54; Middlesex Railroad Co. v. Wakefield, 103 Mass. 261; Dow v. Wakefield, Id. 267.
river, which required "a good and sufficient slide, that will admit the passage of all such rafts as may navigate said river," was construed as referring to such rafts as might navigate the river after its condition was improved by the dam.i Where the eharter of a railroad company authorized it to bridge a navigable stream, provided that the navigation of the stream should not be thereby obstructed, a temporary obstruction, caused by the necessary framework and scaffolding used in erecting the bridge, was held to be an obstruction within the meaning of the proviso, for which the company was liable to any person injured thereby.2 A charter granted to a bridge company, requiring a "convenient draw" in the bridge, is violated if the draw cannot be passed without danger or vexatious delay.3 A charter which authorizes the building of a dam across a navigable channel, with the proviso that it be "so constructed as to leave the channel of the river as safe and convenient for the descent of rafts as it now is," has been construed to mean the least obstruction of navigation consistent with the uses of the dam for the purpose contemplated by the charter.4 Where the draw oi a bridge across navigable waters is required to be of a certain width, the measurement cannot be made along the line of the bridge if it is built diagonally across the river.6 If a statute authorizes the erection of a bridge with piers, in such manner as not "to injure, stop, or interrupt the navigation," but does not fix the number and location of the piers, the State may complain if the piers are so injudiciously located as to obstruct
i Volk v. Eldred, 23 Wis. 410. This was an action for injuries to a raft caused by obstructions at a dam. It was held no defence that the raft could not have navigated the river at all before the dam was built.
'- Memphis & Ohio Railroad Co. v. I licks, o Snced, 427. So, of repairs. Lister v. Newark Plank Roud Co., 30 N. J. Eq. 477.
3 Jolly v. Terre Haute Drawbridge Co., 0 McLean, 237; Attorney General v. New York Railroad Co., 0 C. E. Green, 49; Proprietors c. Hoboken Land Co., 2 Beas. 504; New Haven
Toll Bridge Co. v. Bunnell, 4 Conn. 58. A city which is required by statute to maintain a bridge as a public highway, is not liable for tht detention of a vessel caused by the draw of the bridge not being of the prescribed width, or by the neglect of the superintendent of the bridge, unless such liability is expressly created by statute. French v. Boston, 129 Mass. 592.
4 Whitaker v. Delaware Canal Co., 87 Peun. St. 34.
6 ilissouri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281.